Citation Nr: 1803361 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-32 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for respiratory disability, to include asthma and chronic obstructive pulmonary disease (COPD). REPRESENTATION Veteran represented by: AMVETS WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In May 2015, the Board remanded the claim of entitlement to service connection for respiratory disability, to include asthma and COPD. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In May 2015, the Board's remand directed that the AOJ request outstanding VA treatment records to include those from the Long Beach VA Medical Center (VAMC). The record shows no indication that these records were requested, to include a negative response from that facility. It is noted that the Veteran reported post remand the existence of pertinent treatment records located at the Las Vegas VAMC, which also have not been obtain. Additionally, the Board requested a VA medical opinion in this appeal. Although a VA medical opinion was obtained, the Board finds that it is inadequate and does not substantially comply with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, remand is necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request all pertinent records from the Las Vegas and Long Beach VAMCs, and obtain a negative response if there are no available records. If no records are available, the Veteran should be notified and given the opportunity to provide the records himself. 2. After completion of the above development, the AOJ should return the July 2015 VA medical opinion for an addendum. The claims folder must be reviewed again (along with the Board's May 2015 remand) and the review noted in the addendum. Based on a review of the claims file to include the most recent VA examination findings, the examiner should answer the following questions: (a) Is any respiratory shown during this appeal (including asthma, COPD, and chronic atelectasis) at least as likely as not (50 percent or greater probability) attributable to service? In answering this question, the examiner should address whether the disorder was first manifested in service, had its onset in service, or is otherwise related to service. (i) The examiner should address the Veteran's theory that his respiratory problems are etiologically related to walking pneumonia and/or exposure to chemicals, solvents, or various fuel types, which were exposures attendant to his duties as an aircraft mechanic. (ii) In rendering an opinion, the examiner should consider and discuss the documented complaints of and treatment for asthma, episodes of wheezing, shortness of breath, and chest pain in service. (iii) The examiner should comment on the April 2009 medical opinion by M.B.G that the Veteran's COPD is at least as likely as not a result of his active duty. If the examiner disagrees with this opinion, he should explain why. (b) Did the Veteran's asthma "clearly and unmistakably" NOT increase in severity beyond the natural progression of the disability during active duty? Because asthma was not noted on the Veteran's service entrance examination dated in October 1967, the Veteran is presumed to have been in sound condition on his service entry. Asthma was later shown in service with a history of asthma prior to service entry. In rendering an opinion, the examiner should consider and discuss the documented complaints of and treatment for asthma, episodes of wheezing, shortness of breath, and chest pain in service. For both (a) and (b) above, a complete rationale for the medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; the addendum should contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).